Citation Nr: 0912776
Decision Date: 04/06/09 Archive Date: 04/15/09
DOCKET NO. 98-12 509A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a mental disorder.
(The issue of whether a debt of $7,090 was correct based on
the Veteran's income for VA purposes for the period from
February 1, 1996 to June 30, 2000. is the subject of a
separate decision).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Veteran served on active duty from January 1967 to
December 1968.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia. Notably, a Board decision dated September 2006
reopened a prior final decision on this matter, and remanded
the claim to the RO, via the Appeals Management Center (AMC),
in Washington, D.C., for further development.
FINDING OF FACT
The Veteran's currently diagnosed psychiatric disorders were
not manifest in service, a psychosis was not manifested to a
compensable degree within one year from service, and it is
not shown that any currently manifested psychiatric disorder
is related to service.
CONCLUSION OF LAW
Service connection for a mental disorder is not warranted.
38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In
general, service connection requires (1) medical evidence of
a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
A disease must be shown to be of a chronic nature in service,
or if not chronic, then seen in service with continuity of
symptomatology demonstrated after discharge from service.
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-
97 (1997). Disorders diagnosed after discharge may still be
service connected if all the evidence, including pertinent
service records, establishes that the disorder was incurred
in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d
1039, 1043 (Fed. Cir. 1994).
Certain chronic diseases, such as a psychosis, may be
presumed to have been incurred in or aggravated by service if
manifest to a compensable degree within one year of discharge
from service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R.
§§ 3.307, 3.309.
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet. App.
183, 186 (1997). Where the determinative issue involves
medical causation or a medical diagnosis, there must be
competent medical evidence to the effect that the claim is
plausible; lay assertions of medical status generally do not
constitute competent medical evidence. Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
However, lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (e.g., a broken
leg), (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symptoms
at the time supports a later diagnosis by a medical
professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007).
In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994).
See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court
of Appeals of Veterans Claims (Court) has emphasized that
when a condition may be diagnosed by its unique and readily
identifiable features, the presence of the disorder is not a
determination "medical in nature" and is capable of lay
observation. In such cases, the Board is within its province
to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding
of service incurrence and continuity of symptomatology
sufficient to establish service connection. See Barr v.
Nicholson, 21 Vet. App. 303 (2007).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski,
1 Vet. App. 49, 56 (1990).
Unfortunately, the Veteran's original service treatment
records (STRs) and claims folder have been lost. Attempts to
reconstruct the record, to include direct searches for STRs
at the 97th General Hospital in Frankfurt, Germany, have been
unsuccessful. Under such circumstances, the Court has held
that there is a heightened obligation on the part of VA to
explain findings and conclusions and to consider carefully
the benefit of the doubt rule. See Cuevas v. Principi, 3
Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App.
365, 367 (1991).
It is further noted, however, that the case law does not
lower the legal standard for proving a claim for service
connection, but rather increases the Board's obligation to
evaluate and discuss in its decision all of the evidence that
may be favorable to the claimant. See Russo v. Brown, 9 Vet.
App. 46 (1996). Moreover, there is no presumption, either in
favor of the claimant or against VA, arising from missing
records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18
(2005) (the Court declined to apply an "adverse
presumption" where records have been lost or destroyed while
in Government control which would have required VA to
disprove a claimant's allegation of injury or disease in
service in these particular cases).
The record includes copies of service personnel records
(SPRs) for the Veteran's period of active service. These
documents reflect that the Veteran served on active duty for
1 year, 11 months and 14 days with overseas service in the
United States Army Europe (USAREUR) Germany for 1 year, 3
months and 3 days. Specifically, the Veteran was located in
the Continental United States (CONUS) until December 1967,
wherein he was transferred to USAREUR. He returned to CONUS
in March 1969. There is no indication that the Veteran
served in Vietnam, and he was not awarded any decorations,
medals, badges, etc., indicative of Vietnam service. He had
a period of absent without leave (AWOL) in August 1967, and
available records indicate that there had been no evidence of
mental instability to account for the period of AWOL. The
Veteran attributed his absence to leg pain. He was confined
from October 3, 1967 to October 26, 1967.
The record only includes copies of STRs provided by the
Veteran himself. There are no clinical records documenting
any specific psychiatric symptoms demonstrated in service.
There are, however, two separate copies of a DA Form 8-275-2
entitled "CLINICAL RECORD COVER SHEET," which purportedly
show the Veteran's hospitalized treatment for "Paranoid
schizophrenic."
In the Board's remand dated September 2006, the Board
reopened the claim noting the existence of such a document in
the singular and assuming the authenticity of the document.
See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v.
Principi, 3 Vet. App. 510, 513 (1992) (evidence is presumed
credible for the purposes of reopening unless it is
inherently false or untrue). The Board then reopened the
claim for opinion as to whether it was as likely as not that
the Veteran's current mental condition was causally related
to service. See McLendon v. Nicholson, 20 Vet. App. 79
(2006) (the provisions of 38 C.F.R. § 3.159 regarding VA's
duty to provide medical examination or obtain medical opinion
is a low threshold and requires only that the evidence
"indicates" that there "may" be a nexus between the
current disability or symptoms and the veteran's service).
In an opinion dated August 2007, the VA examiner diagnosed
the Veteran with a schizoaffective disorder and stated that
the Veteran reported that his current symptoms started in
service. However, other than the clinical record cover
sheet, the examiner found a lack of verifiable evidence that
the Veteran's schizoaffective disorder resulted from military
service.
Service connection in this claim can be established on three
separate bases. Paranoid schizophrenia, which is a
psychosis, is classified as a chronic disease. See 38 C.F.R.
§§ 3.309(a); 4.130. A diagnosis of a chronic disease in
service, and subsequent manifestation of such disease after
service, provides a proper basis for which to award service
connection on a presumptive basis under 38 C.F.R. § 3.309.
See Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008)
(for chronic disabilities, when claimant shows in-service
incurrence and same diagnosis after discharge, he or she is
entitled to presumption of service connection).
Additionally, service connection can be awarded if a
psychosis manifested to a compensable degree within one year
from service.
Finally, service connection can be awarded when the lay and
medical evidence establishes that a currently diagnosed
disorder is causally related to event(s) in service. The
absence of STRs in this case does not preclude an award of
service connection, as lay reports of injury, symptoms and/or
treatment may be used to supplement the evidentiary record.
See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000)
(examiner opinion based on accurate lay history deemed
competent medical evidence in support of the claim); Kowalski
v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a
medical opinion cannot be disregarded solely on the rationale
that the medical opinion was based on history given by the
veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993)
(holding that the Board may reject a medical opinion based on
an inaccurate factual basis).
The Board must first address the authenticity of the DA Form
8-275-2's submitted by the Veteran. It cannot be disputed
that two different documents have been submitted. The first
copy of this document, submitted in April 2004, is a one-
sided photocopy noting an admitting officer of Dr. R. in Box
22, which is the same as the attending physician noted in Box
30. This document will be referred to as "Copy #1."
A second copy of a similar document (hereinafter Copy #2) is
a two-sided photocopy which is blank for an admitting
physician in Box 22.
This document has clearly been altered.
In Box #1, the word "NOTES" has a significant gap between
the letters "O" and "T" with an apparent handwritten
correction of the letter "O." In Box #22, the letter "O"
of "Officer" is also abnormal with an apparent handwritten
correction. In Box #33, the first "(" is also an apparent
handwritten correction. None of these defects are present in
Copy #1.
The Board makes several observations with respect to Copy #2.
It is apparent to the Board that the defects noted above are
handwritten corrections to a document which was subsequently
photocopied. The original has not been produced. The Board
can find no legitimate reason the defects shown in Box #'s 1,
22, and 33 would be present on an original document or copy
thereof.
Additionally, the Board can find no reasonable explanation
why any military physician or official would undertake the
efforts to make handwritten corrections to such minor
abnormalities. In fact, it is highly doubtful that such
minor and insignificant abnormalities would have been
discovered at all.
The Board's concerns with the documents submitted by the
Veteran goes beyond these discrepancies, as the information
provided on both of these documents is patently inconsistent
with the available STRs which are known to be authentic (and
provide the basis for service connection awards).
The Board does not dispute that the Veteran was hospitalized
at the 97th General Hospital from September 14, 1968 to
October 9, 1968. A legitimate copy of a clinical record
signed by Dr. H. indicates treatment for a left femur
disability. A Physical Profile (DA Form 8-274) was issued
for this treatment which included a temporary profile for
this disability ("L.")
However, a temporary profile was not issued for the Veteran's
psychiatric status ("S") in either this document or either
copy of the DA Form 8-275-2's submitted by the Veteran, which
strains credulity based upon a claimed 26-day hospitalization
for a symptomatic "Paranoid schizophrenic." See Odiorne v.
Principi, 3 Vet. App. 456, 457 (1992) (observing that the
"PULHES" profile reflects the overall physical and
psychiatric condition of the veteran on a scale of 1 (high
level of fitness) to 4 (a medical condition or physical
defect which is below the level of medical fitness for
retention in the military service); Hanson v. Derwinski, 1
Vet. App. 512, 514 (1991)(The "S" stands for "Psychiatric"
under PULHES).
The Board makes one additional observation regarding the
Veteran's known hospitalization for the left femur disability
from September 14, 1968 to October 9, 1968. This period of
hospitalization does not add up to "26" days as reflected
in Copies #1 and 2 of the DA Form 8-275-2's submitted by the
Veteran.
In simple terms, the known and verified information of record
regarding the Veteran's hospitalization for left femur
disability from September 14, 1968 to October 9, 1968 is
completely inconsistent with the purported additional or
concurrent hospitalization for "Paranoid schizophrenic"
during this same time period, providing highly probative
factual evidence against this claim.
The Board next notes that the purported DA Form 8-275-2's
submitted by the Veteran were not part of the record when
STR's had been provided by the National Personnel Records
Center (NPRC). An RO rating decision in September 1988, in
pertinent part, described the evidence then of record as
follows:
Vet. is SC for conditions under Code 1 below
(postoperative status post fracture, left femur
with scars; fracture, head, left radius) which are
currently under appeal. SMR's are neg. for
complaint or treatment of a nervous condition.
Records indicate vet. was seen in the mental
health clinic beginning 12-76 with complaint of
being upset as a result of having been dismissed
from his job with the postal service. It is
indicated the vet. was bothered by thought of
harming those standing in his way and blocking
him. He complained of being depressed and he
displayed a somewhat flattened affect. He was
seen by Dr. [J.] who prescribed Elavil. Vet.
rcvd. OPT in the mental health clinic for a few
months. Next treatment record is dated 08-20-79
with undiagnosed psychiatric illness. Vet. had
episodic depression with violent thoughts. Vet.
was hospitalized 08-21 to 09-20-79 with depression
over inability to get a job. Vet. was
hospitalized 10-04 to 11-15-79 for rehabilitation
for poly drug abuse including cocaine, marijuana
and hashish...
Thus, the RO's description of the evidence then of record
provides strong evidence that the purported DA Form 8-275-2's
had not been provided by the NPRC.
On its face, the DA Form 8-275-2's submitted by the Veteran
do not appear authentic, and the only possible means to
authenticate this hospitalization and treatment for
"Paranoid schizophrenic" is to rely on the credibility and
reliability of the Veteran's assertions and recollections.
Unfortunately, the Veteran's own statements are inconsistent
with the claimed hospitalization in service, and his
demonstration of patently false information provided to VA
completely undermines his credibility before the Board,
providing evidence against this claim.
First, the record demonstrates that the Veteran has provided
a patently false statement to VA. For example, the Veteran
has sought VA compensation for prostate cancer on a
presumptive basis based upon purported service in Vietnam.
See VA Form 21-4138 received October 2006. The SPRs in this
case are complete, and document his whereabouts for his
entire period of service. It cannot be disputed that the
Veteran did not serve in Vietnam, and the Veteran's own
statements to VA clinicians bear out the improbability of
such service. See VA clinical record dated January 2007
(describing serving in the Army from 1967 to 1969 with 15
months in Germany).
Next, the record demonstrates that the Veteran is not a
reliable historian, having persecutory delusions directed
towards the military and VA. See VA clinical record dated
July 1989. He believes that Army physicians used him as a
"guinea pig" by giving him LSD. See VA clinical record
dated July 1999.
Next, the Veteran's description of his purported in-service
symptoms and hospitalization are unreliable. A November 1989
private psychological evaluation reflected the Veteran's
allegation of psychiatric treatment in the Army in 1968. He
alleged that the military wanted to perform surgery on his
left femur, that he didn't want such surgery, that he
expressed his desire to kill the doctor, and that he was
hospitalized as a result. At that time, the examiner noted
that the Veteran's presentation was "very bizarre" which
probably represented some type of thought disorder. It was
further commented that the Veteran was "very evasive and
somewhat unusual" in giving responses about himself.
During his August 2007 VA examination, the Veteran primarily
attributed his psychiatric problems in service due to racial
prejudice and a "covered up" court martial proceeding which
led to his early dismissal from the service. He stated that
he was treated for his "psychiatric issue" but did not
elaborate any further than stating he was diagnosed with
paranoid schizophrenia. He did not mention threatening a
military doctor.
Similarly, during his testimony to the Board in October 1999
and July 2006, the Veteran could not provide any specifics
regarding his in-service treatment, symptoms and diagnosis.
He attributed his current psychiatric symptoms to his
treatment in the stockade and various racial issues, and not
to military treatment for his left femur disability as
claimed in the November 1989 psychiatric evaluation.
On other occasions, however, the Veteran has not reported a
history of psychiatric hospitalization in service and,
rather, attributed the onset and cause of his psychiatric
symptoms to being fired from a post office job after service.
See VA clinical records dated December 2006 and January 2007.
This information is entirely consistent with the summary of
evidence provided by the RO in its September 1988 rating
decision.
Finally, the Board observes that the Veteran has owed the
Social Security Administration more than $40,000 for
receiving disability benefit payments during a time period
where he was working. This demonstrates a lack of candor by
accepting government benefits with no legal entitlement.
Notably, the Veteran's failure to report his work activity
created an overpayment of VA pension benefits, which is the
subject matter of a separate decision by the Board.
In summary, the Board finds that the Veteran's allegations of
in-service psychiatric symptoms and treatment lack any
semblance of credibility and are rejected in their totality.
It is obvious to the Board that the Veteran has, in fact,
submitted a false statement to VA in pursuing presumptive
service connection for prostate cancer based upon alleged
service in Vietnam. Based upon a totality of the evidence,
the Board refuses to accept the authenticity of the DA Form
8-275-2's submitted by the Veteran and places no probative
weight to his statements which bear upon authenticating such
documents. In sum, the Board rejects these documents as
providing any support to the Veteran's claim of service
connection for a mental disorder. The fact that the Veteran
would submit such records provides highly probative evidence
against his creditability.
Further reviewing the evidence, the reliable information of
record reflects that the Veteran first manifested psychiatric
symptoms, and sought treatment, after he was fired from a
post office job several years after service. The record
discloses various diagnoses of his psychiatric disorder, to
include probable paranoid schizophrenia, severe personality
disorder, and major depressive disorder (MDD). The Board
finds no reliable evidence that the Veteran had persistent or
recurrent symptoms of psychiatric symptoms since service, or
manifested a psychosis within one year from his discharge
from service, and findings medical evidence against such a
finding. The VA examiner in August 2007 did not attribute
the Veteran's current psychiatric disorder to any event
during service, and there is no competent evidence of record
attributing the Veteran's current psychiatric disorder to any
event during service. Therefore, the preponderance of the
evidence is against this claim.
Overall, the Board finds that the available service and post-
service medical records provide evidence against this claim,
outweighing the Veteran's allegations which are found totally
lacking in credibility, to the point that his statements are
found to actually provide evidence against his own claim. As
there is no evidence that the Veteran is trained or educated
in medicine, the Board cannot deem the Veteran as competent
to offer an opinion as to the nature and etiology of his
psychiatric disorder. Espiritu, 2 Vet. App. at 494; 38
C.F.R. § 3.159(a). Accordingly, the Board finds that the
preponderance of the evidence is against his service
connection claims for a mental disorder. 38 U.S.C.A.
§ 5107(b). The appeal, therefore, is denied.
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
With the exception of providing notice of the downstream
elements of establishing a disability rating and effective
date of award, an RO letter in September 2005 satisfied the
VCAA notice content requirements. See 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b). See also Quartuccio v. Principi,
16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004). Notably, the Veteran is aware of the missing STRs,
and has submitted all available copies in his possession.
The timing deficiency was cured with readjudication of the
claim in the supplemental statements of the cases dated
February 2006 and June 2008. See Mayfield, 444 F.3d 1328
(Fed. Cir. 2006).
The Board is aware of the decision in Dingess v. Nicholson,
19 Vet. App. 473 (2006), regarding notice requirements. As
the claim remains denied, these issues are not implicated so
that no prejudice accrues to the Veteran.
VA has a duty to assist the Veteran in the development of the
claim. This duty includes assisting the Veteran in the
procurement of STRs and pertinent treatment records and
providing an examination when necessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159.
In this case, VA lost the Veteran's claims folder which
included his original STRs. Extensive attempts to
reconstruct the record have been undertaken, to include a
direct request with the 97th General Hospital in Frankfurt,
Germany for all mental health hygiene records. In September
2002, the NPRC indicated that a direct search of records from
the 97th General Hospital failed to disclose any mental
hygiene records. The RO made a formal finding of
unavailability in February 2006. Additionally, the Veteran
has submitted to VA all available copies of pertinent records
in his possession.
Otherwise, the RO has obtained the Veteran's known VA
clinical records, and all available documents pertaining to
his application for disability benefits with the Social
Security Administration. There are no outstanding requests
to obtain any private treatment records for which the Veteran
has identified and authorized VA to obtain on his behalf.
The Board finds that an additional search for records will
not provide a basis to grant this claim. Simply stated, the
Veteran's statements in this case are so not credible as to
clearly reveal that the Veteran is not entitled to the
benefit sought. He is clearly creating fabricated stories in
order to obtain compensation, providing highly probative
evidence against this claim that outweighs all other evidence
supporting this claim.
The Board had remanded this case for an etiological opinion,
pursuant to the standards of McLendon v. Nicholson, 20 Vet.
App. 79 (2006). On a close inspection of the record, the
Board has determined that the Veteran's allegations of in-
service psychiatric symptoms and treatment is not credible,
and that the DA Form 8-275-2's submitted by the Veteran are
false documents.
The outcome of this claim hinges on what occurred (or more
precisely what did not occur) during service. In the absence
of credible evidence of an in-service disease or injury,
referral of this case to obtain another examination and/or an
opinion as to the etiology of the Veteran's claimed
disability would in essence place the examining physician in
the role of a fact finder. This is the Board's
responsibility. In other words, any medical opinion which
provided a nexus between the Veteran's claimed disability and
his military service would necessarily be based solely on the
Veteran's rejected assertions regarding what occurred in
service. The Court has held on a number of occasions that a
medical opinion premised upon an unsubstantiated account of a
claimant is of no probative value. See, e.g., Swann v.
Brown, 5 Vet. App. 229, 233 (1993) (generally observing that
a medical opinion premised upon an unsubstantiated account is
of no probative value, and does not serve to verify the
occurrences described); Reonal, 5 Vet. App. at 461 (the Board
is not bound to accept a physician's opinion on when it is
based exclusively on the recitations of a claimant that have
been previously rejected.)
Simply stated, referral of this case for an examination or
obtainment of a medical opinion under the circumstances here
presented would be a useless act. The duty to assist is not
invoked where "no reasonable possibility exists that such
assistance would aid in substantiating the claim." See
38 U.S.C.A. § 5103A(a)(2).
Accordingly, the Board is satisfied that all relevant
evidence identified by the Veteran has been secured, and that
the duty to assist has been met. 38 U.S.C.A. § 5103A.
ORDER
Service connection for a mental disorder is denied.
MARY GALLAGHER JOHN J. CROWLEY
Veterans Law Judge
Veterans Law Judge
Board of Veterans' Appeals
Board of Veterans' Appeals
__________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs